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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/20/2019 - SECOND READING OF ORDINANCE NO. 097, 2019, APPROVIAgenda Item 5 Item # 5 Page 1 AGENDA ITEM SUMMARY August 20, 2019 City Council STAFF Matt Zoccali, Environmental Regulatory Affairs Manager Judy Schmidt, Legal SUBJECT Second Reading of Ordinance No. 097, 2019, Approving and Authorizing Execution of the Second Amendment to Permanent Easement dated April 27, 2006, to Public Service Company of Colorado Related to the Northside Aztlan/Poudre River Site. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on July 16, 2019, amends an existing easement located on City property that includes the Northside Aztlan/United Way parcel, 226 Willow Street, and a portion of the Gustav Swanson Natural Area, sometimes referred to as the Aztlan/Poudre River EPA Removal Action Site, at 112 Willow Street. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, July 16, 2019 (w/o attachments) (PDF) 2. Ordinance No. 097, 2019 (PDF) Agenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY July 16, 2019 City Council STAFF Matt Zoccali, Environmental Regulatory Affairs Manager Judy Schmidt, Legal SUBJECT First Reading of Ordinance No. 097, 2019, Approving and Authorizing Execution of the Second Amendment to Permanent Easement dated April 27, 2006, to Public Service Company of Colorado Related to the Northside Aztlan/Poudre River Site. EXECUTIVE SUMMARY The purpose of this item is to amend an existing easement located on City property that includes the Northside Aztlan/United Way parcel, 226 Willow Street, and a portion of the Gustav Swanson Natural Area (the “City Property”), sometimes referred to as the Aztlan/Poudre River EPA Removal Action Site, at 112 Willow Street. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Site History  Poudre Valley Gas Company produced manufactured gas from coal and possibly oil at a former gas plant site south of the site. The gas plant closed approximately 1926.  Various industrial facilities such as a municipal power plant, petroleum bulk plants, petroleum retail facilities, and automotive repair facilities operated at locations adjacent to the site from as early as the 1930s  A municipal solid waste landfill was located on the site. Little information is available about the contents of the landfill, and the exact dates the landfill operated are not known. However, aerial photographs reviewed indicate the landfill was in operation by 1941. o The landfill was not gated, nor was the waste monitored for content prior to disposal. o Open burning of wastes was conducted at the landfill until the early 1960s, when it was closed and covered with one to three feet of silty clay o This landfill was operated variously by private parties and by the City of Fort Collins. Environmental Concerns at the location  Potential exposure to a variety of materials associated with the former landfill, including asbestos- contaminated soils and asbestos-containing debris  Coal-tar and chlorinated solvent contamination that poses health risks when released into the environment Poudre River Superfund Site In September 2002, an oily sheen was observed and reported near the south bank of the Cache La Poudre River nearest the site. Further investigation revealed a non-aqueous phase liquid (NAPL) “plume” and associated concentrations of organic compounds exceeded water quality criteria and other ecological screening values. ATTACHMENT 1 Agenda Item 9 Item # 9 Page 2 The plume originated on former gas plant property (located on what is now the Schrader property) and extended out under Willow Street and the parking lot of Northside Aztlan Community Center to the Cache La Poudre River (Attachment 1). In November 2004, a Removal Action under the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was initiated by the EPA to address contamination associated with the manufactured gas plant activities. Removal action goals, along with other legal obligations, were defined and documented in an Administrative Order on Consent (AOC). The City of Fort Collins, PSCo, EPA, and Schrader Oil were identified as stakeholders and PSCo and Schrader Oil were identified as responsible parties, liable for cleanup of the site. The Removal Action was intended to:  Prevent migration of NAPL into the riverbed.  Prevent discharge of NAPL to surface water.  Protect future on-site workers and recreational users.  Allow future development consistent with these objectives. Voluntary Cleanup and Redevelopment Program In addition to the Removal Action, and to facilitate the construction of the Northside Aztlan Community Center, Handball Court, and Skatepark, the City also entered into an agreement with the CDPHE Voluntary Cleanup and Redevelopment Program (VCUP). In 2005-2006, the City gathered and submitted environmental information related to the property and specified a land use for the location (e.g., community recreation center and related facilities). In January 2007, the City received approval, in the form of a No Action Determination, from CDPHE and redeveloped the location. The No Action Determination states that as long as the steps are followed,”…it is the opinion of the Colorado Department Public Health and Environment that no further action is required to assure that this property, when used for the purposes identified… is protective of existing and proposed uses and does not pose an unacceptable risk to human health or the environment at the site. Some of these required steps include:  Site improvements limited to specific locations.  Site-specific Health and Safety and Material Management Plan developed and implemented.  Installation, maintenance, monitoring, and reporting for a vapor mitigation system and active sub-slab methane detections system on the Northside Aztlan Community Center building. City of Fort Collins Required Actions The City of Fort Collins must comply with the “City-required Actions” found in several legal documents and requirements, including an Administrative Order on Consent, an Environmental Covenant, and the Colorado Department of Public Health and Environment (CDPHE) Regulated Asbestos-Contaminated Soils regulation. The response phase of this project has closed, with EPA making a determination that the Responsible Parties have fulfilled their obligations under the AOC (Attachment 2). As the project has moved into “post-closure”, the City, as the landowner, must continue to implement administrative and engineering controls to manage the location. Staff has already developed and implemented the following items to meet its legal obligations and to protect the public health and the environment:  Land Use/Development Review, Utilities infrastructure, and CityWorks mapping systems have all been “flagged” to highlight that the area presents a specific set of required actions for any land disturbing activities  City Utilities, Parks, Natural Areas, and Forestry Staff received initial and on going refresher training for appropriate actions when conducting work in the area  In internal Work Order system (web-based) has been designed and implemented to ensure that regulatory staff are brought into the loop for any redevelopment, excavation, or landscaping projects being planned at or adjacent to the site.  City staff participates in routine stakeholder meetings with the EPA and Responsible Parties Agenda Item 9 Item # 9 Page 3 Kayak Park and River District Masterplan The City of Fort Collins’ Downtown River District Master Plan outlines proposed City projects along the Poudre River in downtown Fort Collins. Proposed Master Plan activities near the site are in progress and have the potential to impact the Removal Action remedy. Activities include the following:  A new whitewater play park which includes the removal of the existing Coy Diversion ditch and regrading of the River bed and banks.  A new pedestrian bridge crossing the river which has includes regrading of the Riverbank.  New river put-in and take-out areas which are likely to involve regrading of the Riverbank.  Riverbank stabilization improvements which involve regrading of the Riverbank. Due to the potential of these projects to impact the remedy or related site conditions, the City and PSCo have agreed that a select number of monitoring wells and vaults along the river remain in place and not be abandoned at this time. Leaving these components in place will allow for future observation of site conditions relative to the remedy, if deemed prudent due to implementation of City projects. If the evaluation of a City project indicates potential to impact the remedy, as determined by stakeholders, then wells will be gauged prior to and after implementation of the City work. The gauging step is intended to evaluate if City projects have impacted the remedy or site conditions in the vicinity of the barrier wall, and whether any follow up actions are recommended. If the evaluation of a City project does not indicate a potential impact to the remedy, as determined by stakeholders, during that time period, then wells will be abandoned after September 2020. A cross-department team has been convened and continued to meet to define and implement all additional steps that may be needed to ensure continued compliance with legal obligations and protection of the public health and environment at the location. CITY FINANCIAL IMPACTS As part of the easement modification, the City is assuming ownership of a small structure, previously housing an on-site water treatment facility, as well as a number of groundwater monitoring wells. City Parks Department staff inspected the small building and decided it was in good shape and will be an ideal location for storage of landscaping equipment. Financial impacts to assuming ownership of the structure include incremental costs for maintenance, potential renovation for any intended use other than storage for City equipment. Building use other than equipment storage (i.e., remote work station/office) is not recommended and could potentially incur high costs for vapor mitigation to ensure vapors from the historic landfill are not impacting the indoor air quality and human health for City employees occupying the structure. By assuming ownership of groundwater monitoring wells, the City may realize cost-savings if future monitoring activities are needed (i.e., new wells will not have to be drilled). Financial impact related to assuming ownership of the monitoring wells includes well inspection, maintaining covers and locks, periodic registration updates (if needed), and well closure costs. ATTACHMENTS 1. CERCLA Site Map (PDF) 2. Appropriate Next Steps (PDF) -1- ORDINANCE NO. 097, 2019 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING AND AUTHORIZING EXECUTION OF THE SECOND AMENDMENT TO PERMANENT EASEMENT DATED APRIL 27, 2006, TO PUBLIC SERVICE COMPANY OF COLORADO RELATED TO THE NORTHSIDE AZTLAN/POUDRE RIVER SITE WHEREAS, in November of 2004, a removal action was initiated by the United States Environmental Protection Agency (“EPA”) to address environmental contamination caused by activities of a historic manufactured gas plant located hear the Northside Aztlan/United Way parcel, 226 Willow Street, and a portion of the Gustav Swanson Natural Area (the “City Property”); and WHEREAS, the City, Public Service Company of Colorado (PSCo, DBA Xcel Energy), EPA, and Schrader Oil were identified as stakeholders and PSCo and Schrader Oil were identified as responsible parties, liable for cleanup of the contamination, including contamination in the Poudre River and on the City Property; and WHEREAS, by adoption of Ordinance No. 146, 2004, City Council found that conveyance of an easement on the City Property to PSCo at no cost to implement the removal action and associated activities along the Poudre River was in the best interest of the City in view of the anticipated benefits to the City and the general public of the environmental cleanup activities to be conducted thereunder in the River and on the City Property and authorized the Mayor to execute the Permanent Easement Agreement; and WHEREAS, the City and PSCo (as Grantee) entered into a Permanent Easement Agreement dated April 27, 2006, granting PSCo an easement as described therein (the “Easement”) over and across the City Property, which Agreement was recorded in the real property records of the Larimer County Clerk and Recorder on May 3, 2006, at Reception Number 2006- 0032893; and WHEREAS, the City and PSCo amended the Permanent Easement Agreement on July 5, 2011 to modify the location of the telecommunications line and related easement area by execution of an Amendment to Permanent Easement Agreement recorded in the real property records of the Larimer County Clerk and Recorder on August 24, 2011, at Reception Number 20110051428; and WHEREAS, references to the Permanent Easement Agreement hereinafter set forth shall mean the Permanent Easement as amended by the Amendment to Permanent Easement Agreement; and WHEREAS, the removal action has been completed and PSCo has prepared and delivered to the EPA the Poudre River Removal Action Final Closure Report dated May 25, 2016, and a revised Closure Report dated March 31, 2017 (“Closure Report”); and WHEREAS, on August 30, 2017, EPA notified the City and PSCo that in accordance with Section XXIX of the Administrative Order on Consent for Removal Action, CERCLA Docket No. -2- CERCLA-08-2005-0003 (“AOC”) the work required under the AOC has been fully performed; and WHEREAS, the parties desire to modify the Permanent Easement Agreement to reflect that the removal action has been completed and to remove certain provisions that are now obsolete; and WHEREAS, the vertical wall installed by PSCo as part of the removal action will remain in place indefinitely and PSCo is also voluntarily retaining certain monitoring wells and vaults along the Poudre River until approximately 2020 to monitor, if necessary, for potential changes in site conditions; and WHEREAS, the Permanent Easement contains an “Exhibit B” that describes the Easement Area and the parties desire to replace Exhibit B with a revised description of the Easement Area to remove certain areas of City Property; and WHEREAS, City Code Section 23-111 provides that the City Council is authorized to sell, convey or otherwise dispose of real property owned by the City, provided the Council first finds by ordinance that any sale or disposition of real property owned by the City is in the best interest of the City Fort Collins. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above and further finds that further modification of the Permanent Easement Agreement to delete obsolete provisions and revise the description of the Easement Area is in the best interests of the City. Section 2. That the Mayor is hereby authorized to execute the Second Amendment to Permanent Easement Agreement attached hereto as Exhibit “A,” and incorporated herein with such modifications as the City Manager, in consultation with the City Attorney, determines to be necessary or appropriate to protect the interests of the City and the purposes of this Ordinance. Introduced, considered favorably on first reading, and ordered published this 16th day of July, A.D. 2019, and to be presented for final passage on the 20th day of August, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk -3- Passed and adopted on final reading on the 20th day of August, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk SECOND AMENDMENT TO PERMANENT EASEMENT AGREEMENT THIS SECOND AMENDMENT TO PERMANENT EASEMENT AGREEMENT (“Second Amendment”) is made and entered into this __ day of _____, 2019, by and among THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, 300 LaPorte Avenue, Fort Collins, Colorado, 80521 (the “Grantor”) and PUBLIC SERVICE COMPANY OF COLORADO a Colorado corporation d/b/a XCEL ENERGY (the “ Grantee”). Grantor and Grantee are collectively referred to as the “parties.” RECITALS AND PURPOSES WHEREAS, Grantor and Grantee entered into a Permanent Easement dated April 27, 2006, for Grantee to implement a removal action and associated activities along the Poudre River. The Permanent Easement was recorded in the real property records of the Larimer County Clerk and Recorder on May 3, 2006, at Reception Number 2006-0032893; and WHEREAS, Grantor and Grantee amended the Permanent Easement on July 5, 2011, to modify the location of the telecommunications line and related easement area. The Amendment to Permanent Easement Agreement was recorded in the real property records of the Larimer County Clerk and Recorder on August 24, 2011, at Reception Number 20110051428; and WHEREAS, references to the Permanent Easement hereinafter set forth shall mean the Permanent Easement as amended by the Amendment to Permanent Easement Agreement; and WHEREAS, the removal action has been completed and Grantee has prepared and delivered to the U.S. Environmental Protection Agency (“EPA”) the Poudre River Removal Action Final Closure Report (“Closure Report”) dated May 25, 2016. Grantee prepared and delivered to EPA a revised Closure Report dated March 31, 2017; and WHEREAS, on August 30, 2017, EPA notified Grantee and Grantor that in accordance with Section XXIX of the Administrative Order on Consent for Removal Action, CERCLA Docket No. CERCLA-08-2005-0003 (“AOC”) the work required under the AOC has been fully performed; and WHEREAS, the parties desire to modify the Permanent Easement to reflect that the removal action has been completed and to remove certain provisions of the Permanent Easement that are now obsolete; and WHEREAS, the vertical wall installed by Grantee as part of the removal action will remain in place indefinitely. Grantee is also voluntarily retaining certain monitoring wells and vaults along the Poudre River until approximately 2020 to monitor, if necessary, for potential changes in site conditions; and EXHIBIT A WHEREAS, the Permanent Easement contains an Exhibit B that describes the Easement Area. The parties desire to replace Exhibit B with a revised description of the Easement Area to remove certain areas of City Property. NOW, THEREFORE, in consideration of the foregoing and the benefits to be derived therefrom, the Permanent Easement is hereby modified as follows: 1. All defined terms and conventions referenced herein shall be interpreted as defined in the Permanent Easement. 2. Paragraph 1.1 of the Permanent Easement is deleted in its entirety and replaced with the following: “Grant of Easement and Right of Way to the Grantee. The Grantor hereby grants, bargains, conveys, delivers, transfers and sells to the Grantee and its successors and assigns a nonexclusive, perpetual easement (the "Permanent Easement") over and through that portion of the City Property more particularly described and depicted on Exhibit B (Revised) attached hereto and incorporated herein by reference (referred to herein as the "Easement Area"), for the remaining monitoring wells, vaults, and vertical wall (the "Improvements") over and within the Easement Area, subject to the terms, conditions and restrictions set forth herein.” 3. Paragraph 1.3(A) of the Permanent Easement is deleted in its entirety and replaced with the following: “Grantee shall have the right to use the Easement Area for purposes of monitoring, repairing or closing the Improvements, or for removing those Improvements that present a safety hazard. Grantee shall also have the right to access City Property outside of the Easement Area to meet its obligations under this Second Amendment, provided that any such activities are conducted so as to have the minimum impacts reasonably possible. Except in the event of an emergency, the Grantee shall not install any fixtures or appurtenances, or other additional improvement of any kind, without prior written notification to the Grantor. In the event of an emergency, the Grantee shall notify the Grantor of the emergency and related installation of improvements as soon as reasonably practicable. The Grantor’s approval of this Easement Agreement or its approval in the future of any schedule is not and shall not be construed as an endorsement of or approval by the Grantor of the technical or practical sufficiency of the Improvements.” 4. Paragraph 1.3(C) of the Permanent Easement is deleted in its entirety and replaced with the following: “The Grantee shall have the right of vehicular and non-vehicular access across the City Property as necessary to access the Easement Area to perform any obligations under this Second Amendment, subject to Grantee's obligation to fully restore the City Property in the event of any damage thereto. Except in the event of an emergency, vehicular access across the City Property shall be limited to existing paved roads and surfaces, to the extent practicable. For ingress and egress across the City Property to and from the Easement Area, the Grantee shall primarily use the permanent vehicular access, as described on Exhibit C, attached hereto and incorporated herein by this reference.” 5. Paragraph 1.3(D) of the Permanent Easement is deleted in its entirety. 6. Paragraph 1.3(G) of the Permanent Easement is deleted in its entirety and replaced with the following: “The parties acknowledge and agree that all activities by the Grantee on the Easement Area, and any access across the City Property shall be carried out in a manner and on a schedule reasonably expected to minimize disturbance to and preserve the improvements on and the natural or improved features and intended purposes of, the City Property. Grantee shall be responsible for repairing or removing any Improvements installed by Grantee in the Easement Area that present a safety hazard. In the event damage has resulted from the maintenance, repair, removal or presence of the Improvements, or Grantee's activities on the Easement Area or the City Property, the Grantee agrees to make such repairs or take such other action, promptly and at its own expense, as may be necessary to restore the same to a condition consistent with the Grantor's standards for work on Grantor's similarly managed properties in place at the time the need for restoration is ascertained, as reasonably determined by mutual agreement of the parties. The parties acknowledge that sensitive vegetation, habitat or other natural conditions, or specific conditions required for safe public use of the City Property, may require special effort by the Grantee to protect, restore, or replace in the event they are disturbed by the activities of the Grantee.” 7. Paragraphs 1.4(A) and (B) of the Permanent Easement are deleted in their entirety and replaced with the following: “A. An authorized representative of the Grantee and the Grantor will meet or otherwise confer on an as-needed basis to discuss proposed City projects that may potentially impact the Improvements, including but not limited to the City of Fort Collins’ Downtown River District Master Plan, 2014. The Grantor will initiate and coordinate such meetings. B. To the extent practicable, the parties shall provide the following information to each other, as applicable, during any such meeting: 1. Schedule and location of proposed and planned City projects; 2. Any sampling events or other activities proposed by Grantee (“site visit”); and 3. Observations of site conditions. 8. The contacts and addresses for Grantee in Section 7 of the Permanent Easement are deleted and replaced with the following: For Grantee: Manager, Waste and Remediation Xcel Energy Services Inc. 1800 Larimer St., Suite 1300 Denver, CO 80202 With a copy to: Assistant General Counsel (Environmental) Xcel Energy Services Inc. 1800 Larimer St., Suite 1100 Denver, CO 80202 and: Director, Real Estate Services Xcel Energy Services Inc. 414 Nicollet Mall Minneapolis, MN 55402 9. The Permanent Easement shall remain in full force and effect and unmodified except as expressly set forth in this Second Amendment. IN WITNESS WHEREOF, the parties here to have executed this Second Amendment the day and year first written above. CITY OF FORT COLLINS, COLORADO a municipal corporation By: ______________________________ Wade O. Troxell, Mayor ATTEST: _______________________ City Clerk APPROVED AS TO FORM: _______________________ Assistant City Attorney PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation d/b/a XCEL ENERGY By: ______________________________________ EXHIBIT B